Risk and Consent

This is specific to the Australian legal context

Every individual has a right to:

• Determine what is done to their body
• Know the implications of any medical treatment provided
• Seek clarification of any issues of concern

Practically, adequate discussion of risk is a precursor to gaining informed consent from a patient, and is a moral and legal requirement. How this discussion takes place, and how much information to be given depends on:

• Clinical acuity
• Relative urgency
• Relative risk of performing vs. not performing an intervention
• The individual patient and their perception of material risk

Consent

Requires:

• Voluntarily and without coercion
  
  • Refusal and withdrawal must be a realistic option
  • Patients can refuse for any reason at all, rational or irrational, provided they have capacity and have been provided adequate information
• Capacity
  
  • Requires three things:
    • Comprehension of general information about procedure
      Can be quite brief/broad overview.
    • Retain and weigh up information
      Often the critical point.
    • Communicate decision
  • Everyone is assumed to have capacity unless there are reasonable grounds for believing otherwise
    
  • In absence of capacity, another person can give consent on behalf of the patient in certain legally-defined circumstances
    
    • They are legally obligated to act in the best interests of the person for whom consent is being given.
    • A legal guardian may need to be appointed, or a statutory body (e.g. Guardianship board) may beed to give consent if the individual does not have capacity and there is no currently existing legal guardian available
  • Age
    One must be old enough to understand the nature, purpose, and consequences of the treatment; as well as the consequences of non-treatment. This does not necessarily require one to be over 18 - this exception is known as Gillick competence, where a minor can consent to certain procedures provided they can understand and weigh up risks.
    
• Informed
  • Information that a reasonable patient in their position might wish to know and attach significance
    Includes information about risk that would be significant to:
    • A reasonable individual in this position
    • This particular patient
      This is the concept of material risk.
  • Basic information must be provided, even if the patient requests no information
    If staunch refusal exists, then this should be documented.

Exceptions

Treatment can proceed without consent if:

• The situation is so urgent that immediate intervention is necessary to preserve life or prevent serious harm
  Provision of information and discussion of treatment undertaken must be done as soon as possible.
• Treatment is:
  (Seek legal advice before proceeding with this justification).
  • In the patients best interests
  • Reasonable stepts have been taken to determine the patients views
  • Believed by the doctor to have been chosen by the patient if they were competent to do so
    
  • Required immediately to prevent further injury to the patient

Risk

Use BRAN: * Benefits * Risks * Alternatives * Nothing
What will happen if we do nothing.

Discussion should:

• Be based upon:
  • Seriousness and nature of the condition
  • Complexity of the surgery
  • Questions asked by the patient
  • Patients attitude and level of understanding
• Include:
  • Rare but severe harms
  • Common but minor harms
  • Uncertainty relating to outcomes
  • The risk of doing nothing
  • Financial implications
    If relevant.
• Be performed by:
  • A person able to understand and discuss the risks and benefits of the treatment
  • A qualified interpreter if necessary
    Not a family member.
  • The anaesthetist providing the anaesthetic
    • A separate anaesthetist may interview and discuss risk with the patient, but the treating anaesthetist is liable if inadequate consent is obtained by another on their behalf

Negligence

Negligence requires:

• A duty of care exists
  Basically assumed in medical cases.
• Duty of care has to be breached
• Harm has to be suffered
• Harm would not have occurred if breach did not occur

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References

1. ANZCA. PS26: Guidelines on Consent for Anaesthesia or Sedation.
2. Burke, J. Elements of risk and consent. ANZCA Part 2 Course. 2020.